Order-16.

Date-27/04/2015.

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that complainant purchased a flat on the back side of first floor of the building at 35B, Shib Krishna Daw Lane, P.S. Phoolbagan, Kolkata – 700 054, measuring approx 800 sq. ft. consisting of two Bed Rooms one Dining cum Drawing, one open Kitchen, two Toilets and one Verandah lying and situated at newly constructed G+3 storied building under the above mentioned land measuring 3 Chottahs 13 Chittaks approx together with useable right of ultimate roof and equipment and other parts of service and users of all common facilities, amenities and easement, right of the building at the above mentioned premises and the OPs jointly offered for the above flat and entered into verbal agreement for sale with a total consideration of Rs.19,94,000/- and received full consideration at different time and acknowledged the same.  OPs have made several commitments to the complainants at the time of construction like uses of ultimate roof right and uses of common passage and demanded money at the time of construction.  Complainant had taken possession of the flat on 06-05-2011 and several times verbally told them to complete the registration works but the OPs did not take any initiation for that and even after receiving all consideration money OPs are reluctant to complete the registration work for the flat and also not allowing to use the common areas like common roof, common areas which are surrounding the building for any common purpose and also not allowing the complainants to put letter box in front of Main gate of the building. 

It is further stated that complainants have not yet got the key of main gate, key of pump room, key of common roof etc. from the OP as yet and further OPs have not allowing the complainants to put collapsible gates in front of complainants’ flat and have not provided Completion Certificate of the building.

          Therefore, on 16-07-2014 complainants sent a notice to the OPs to request for registering the flat but the OPs did not heed to.

          Thereafter, finding no other alternative complainants compelled to file this case before this Forum praying for :

1. Direction upon the OPs to put their signature in Deed of Conveyance for the purpose of registering the flat,
2. Direction upon the OPs to pay 10 percentinterest per annum on the aggregate sale price of Rs.19,94,000/- on the ground of delay of making Deed of Conveyance of the said flat from the date of possession,
3. Direction upon the OPs to pay cost and incidental charges,
4. Direction upon the OPs to allow the complainants to use useable right of ultimate roof and equipment and other parts of service and users of all common facilities, amenities and easement, common areas which are surrounded the building, right of the building at the above mentioned premises as OPs committed,
5. Direction upon the OPs to provide Building Completion Certificate,
6. Direction upon the OPs to provide key of main gain, key of pump room, key of roof etc.
7. Direction upon the OPs to allow the complainants to put letter box in front of main gate of the building and to allow the complainants to put collapsible gates in front of complainants’ flat.

On the other hand, Ld. Lawyers on behalf of the OPs (except OP8) by filing written objection submitted that Arabinda Bose, Jagadish Bose, Anil Bose, Amar Bose and Asim Bose were the joint owners of all that piece or parcel Bastu Land measuring 3 Kottahs 13 Chittaks of land together with old dilapidated dwelling house and all the members of the said five owners decided to raise four storied dwelling house by demolishing the old dilapidated dwelling house at the premises No.35B, Shibkrishna Daw Lane, Kolkata – 700 054 and obtained a sanctioned building plan from K.M.C. on 27-03-2004 and constructed there four storied (new G+3) building consisting of six self contained flat on 1^st, 2^nd and 3^rd floor and car parking space on the ground floor as per sanctioned plan approved by the KMC.

          The five owners of the OPs decided to sell the flat in question in the year 2010 and the complainant was their neighbour who approached to sell the flat in question to the complainants on the terms and condition as framed by the owners and also requested to deliver the possession after making payment of the consideration money by two or three instalments and the OPs agreed to sell the flat in question at a consideration of Rs.22 lakhs.  Complainants paid the sum of Rs.19,94,000/- within the period of September, 2010 to 06-05-2011 to the OPs and requested the owners to deliver the possession of the said as he had to vacate his tenante3d premises and also promised to make the balance payment of Rs.2,06,000/- before registration of the said flat and on good faith the OPs signed on the possession letter but after receiving the possession complainant intentionally refused and neglected to pay the balance consideration money and forcibly tried to encroach the roof of the building by keeping various heavy weight articles thereon.

          OPs denied and disputed that in spite of getting all consideration money for the flat the OPs are not taking initiative to complete the registration work for the flat and/or the OPs are harassing the complainant by not allowing to use the common areas which are surrounding the building and/or OPs not allowing the complainant to put letter box in front of main gate of the building and/or putting collapsible gate in front of the flat and/or not getting key of pump room as alleged at all and OPs have further submitted that they never agreed to sell the roof ring with the said flat in question to the complainant and they have not yet procured the completion certification from the K.M.C.

          All other allegations made by the complainants are false and fabricated and to have some illegal gain complainants filed this case.

Decision with Reasons

On comparative study of the complaint including the written version and further in the replies issued by the OPs and also possession letter dated 06-05-2011 it is clear that OPs received entire amount for selling one flat situated at the back side of the first floor on 35B, Shib Krishna Daw Lane, P.S. Phoolbagan, Kolkata – 700 054 and it is admitted in the possession letter dated 06-05-2011 that OPs have already received entire amount and handed over the flat in favour of the complainant and in the said possession letter OPs have admitted that they shall have to handover the registered document of flat or registration of the flat after getting completion certificate.  Admitted position is that complainant already got electric connection in the said flat and they have been possessing the said flat and in the possession letter OPs have admitted that after getting completion certificate they shall have to submit all documents for registration.  So, it is clear that there are certain conditions and it is also proved that OPs have already received entire amount which is proved from the possession letter.  Complainant had stated that they have handed over entire amount and thereafter, OPs became satisfied about payment of entire amount of the flat and ultimately handed over the possession and so, as per possession letter it is the declaration of the OPs that they shall have to submit all documents for registration.  So, it is clear that there are certain conditions and it is also proved that OPs have already received entire amount which is proved from the possession letter.  Complainant had stated that they have handed over entire amount and thereafter, OPs became satisfied about payment of entire amount of the flat and ultimately handed over the possession and so, as per possession letter it is the declaration of the OPs that they shall have to submit all documents at the time of registration after getting completion certificate but most interesting factor is that in the written statement it is admitted that they agreed to sell one flat as stated by the complainant which is admittedly under possession of the complainant but their claim is that they are willing to execute the sale deed if complainant pays the balance amount of the consideration that is Rs.2,06,000/- but in this regard after considering the possession letter it is clear that there is no dues then the claim of the OP about non-payment of balance consideration of Rs.2,06,000/- is found baseless but in this regard after considering the possession letter it is clear that there is no dues then the claim of the OP about non-payment of balance consideration of Rs.2,06,000/- by the complainant is proved a false story and truth is that possession would not be handed over to the complainant if OPs shall not get the entire amount and if actually OP would not get balance amount Rs.2,06,000/- in that case the possession letter would not be issued and if there was any balance it which shall be mentioned that there is such balance.  On the contrary from the present document possession letter issued by the OPs it is clear that there is no balance consideration to be paid by the complainant but OPs admitted that they received the entire consideration, thereafter, handed over the possession.  Admitted position is that OP constructed this flats on their own land, thereafter, they sold away one flat and it is no doubt a housing construction and for the benefit and profit OPs sold away the same to the complainant and it is sale of a flat so, invariably complainant is a consumer and truth is that there is certain condition that registration shall be made by the OPs after getting completion certificate but OPs have stated that they have not procured completion certificate from the KMC but no document has been produced by the OP to show that they applied for completion certificate and, in fact, OPs are bound to register the said deed of sale in favour of the complainant as per possession letter declaration and truth is that this is a service because it is admitted by the OPs in the possession letter declaration that they shall have to register it after getting the completion certificate.  So, apparently, it s the duty of the OPs to execute the sale deed and if it is not executed by the OPs it is no doubt deficiency of service when it is admitted position that the OPs received the entire amount of consideration as already stated in their possession letter granted in favour of the complainant and OPs have admitted that they have signed in the possession letter but now, they have tried to say that without realizing content they have signed it but such a plea is false and baseless.

          Anyhow, OPs tried to convince by referring one ruling 2014(2) WBLR(CPSC) 335 and 2010(2) WBLR (CPSC) 585 that complainant is not a consumer and it is a sale simplicitor but after considering those rulings it is clear that in both the cases that means in those judgments the fact was that agreement was for allotment of land but not flat.  But in the present case it is a constructed flat made by the owners.  It is no doubt the development of the old building after destruction and taking new sanction from KMC and when owners developed any land and agreed to sell a flat then it is no doubt an agreement in between the purchasers and the developer/owner and it is sold for the profit.  So, complainant is a consumer and invariably after considering the document it is clear and also relying upon the OPs’ version and evidence they have intended to sell one flat to the third party and they sold it and they handed over possession, possession letter supports that complainant paid entire amount of consideration and invariably after handing over the possession it is the duty of the OPs to execute the sale deed after collection completion certificate.  So, considering that fact we are convinced to hold that possession was delivered admittedly on 06-05-2011 and it is now 2015 and such a delay caused by the OPs is no doubt negligent manner of service and if OPs do not take completion certificate for years together for that reason a purchaser cannot be harassed and in this case complainant no doubt is being harassed by the OPs and OPs refused to register the sale deed on the ground that they have not yet received Rs.2,06,000/- but in reality there is no dues to be paid by the complainant because said possession letter speaks that OP received the entire consideration amount and for which complainant is entitled to register sale deed executed by the OPs in favour of the complainant but that has not been done by the OPs with a false claim and such sort of act on the part of the OPs is no doubt negligent and deficient manner of service and for which the complaint succeeds and no doubt complainant has been harassed by the OPs for last four years for getting a registered sale deed.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/-.

          OPs are directed to execute registered Sale Deed in favour of the complainant within one month from the date of this order at the time of registration of the sale deed          OPs shall have to handover the completion certificate to the complainant and if OPs fail to comply in that case complainant shall have to execute the sale deed through this Forum and in that case OPs shall have to pay a compensation of Rs.50,000/- to the complainant and further they shall have to pay service charge of Rs.10,000/- for registration of the deed by this Forum in favour of the complainant.

          If OPs fail to comply the order within the stipulated period of time in that case till registration of the Sale Deed either by the OPs or by this Forum OPs per month shall have to pay penal damages to the extent of Rs.10,000/- till full and final registration of the sale deed in favour of the complainant.

          If OPs fail to comply this order in that case the penal action shall be started against them for which they shall be prosecuted u/s.27 of the C.P. Act for which further penalty and fine shall be imposed.